August 7, 2017

Unhidden Public Policy: Richard Rothstein on The Color of Law

By In Interviews

[The picture immediately above is from Detroit, MI in 1942. White tenants protested a federal housing project that allowed African-Americans. The title picture at top is a neighborhood on the west side of Chicago from the late 1960s.]

“Today’s residential segregation in the North, South, Midwest, and West is not the unintended consequence of individual choices and of otherwise well-meaning law or regulation but of unhidden public policy that explicitly segregated every metropolitan area in the United States.”

– Richard Rothstein

“When you grow up in a totally segregated society, where everybody around you believes that segregation is proper, you have a hard time. You can’t believe how much it’s a part of your thinking.”

– Shelby Foote

Richard Rothstein is a research associate of the Economic Policy Institute, an independent think-tank examining the consequences of American policies and trends on working people, and a fellow at the Thurgood Marshall Institute of the NAACP Legal Defense Fund and of the Haas Institute at the University of California (Berkeley).

His recent book The Color of Law: A Forgotten History of How our Government Segregated America considers how America’s cities were explicitly segregated by government policy in the years during and after the New Deal in an unconstitutional manner, refuting claims that today’s residential segregation was only the result of private choices and decisions by non-government actors.

Mr. Rothstein has studied and written extensively on education in America and how race, class, and education are intertwined as well.

Richard Rothstein.

Richard Rothstein’s writing and events on the EPI’s website:

Purchase The Color of Law:

[Note: This interview was conducted on August 1, 2017.]

OR: Thank you very much for your time today. Your book is a very important one and about a topic we’ve all sometimes been too quick to shy away from. I’ve read a lot of your work on education policy and I was curious if that is what led to your research on housing – since the two are so closely related.

RR: Absolutely. For many years I’ve been explaining in articles and through research how the social and economic conditions of children determine their average achievement in schools and it’s obvious when you take children who have poor health, or the stress of family economic instability, or parents who are not well-educated and haven’t read very much at home to children, and you concentrate them in single schools and classrooms where teachers are overwhelmed by the social and economic problems these children experience, you can’t possibly expect to close the so-called achievement gap.

The reason that children are concentrated in segregated schools today is because those schools are located in segregated neighborhoods. So, it’s clear to me that we’re never going to accomplish the educational goals that we’ve set for ourselves, so long as we maintain the segregated landscape that’s in every metropolitan area of the country.

One of the reasons that we have this persistent racial segregation is because we’ve come to accept it by explaining it as something that happened by accident; we call it “de-facto segregation” that happened either because of personal prejudices or maybe private discrimination or income differences. The reality is that our segregated landscape is the result of a very racially explicit federal policy designed to create segregation. Unless we recognize that, we are not going to be able to have the kinds of conversations that are necessary to remedy it, because as long as we believe it happened by accident, we won’t be in a position to understand that we have a constitutional obligation to devise remedies to correct it. If we do correct it, we’ll have a better chance of improving the student performance of children in the most disadvantaged communities.

So, yes, in a long answer to your question, my focus on residential segregation did stem from a concern with educational outcomes that forced me to look into why neighborhoods in every metropolitan area in this country are so segregated.

OR: Obviously, the physical segregation is objective fact, I don’t think anybody serious would disagree with that. But, as time has gone on people have tried to explain it away as a natural occurrence or at least not something the government has been involved in.

A book that had a big impact on me was The Power Broker by Robert Caro, and obviously, at the time there was a very good discussion on specific and localized segregation within New York City. He did discuss some of the government policies that led to that segregation. I’m curious why you feel we have forgotten this history. Is it a matter of convenience or are there other underlying reasons?

RR: Well, the subtitle of my book is “A Forgotten History of How Our Government Segregated America.” That’s because it has been forgotten. It was once well known, not only from aspects that Robert Caro mentioned (and that Robert Moses, the subject of Caro’s book, promoted): for example, the major federal housing programs where the federal government came into urban areas, demolished integrated neighborhoods, and constructed segregated public housing in its place.

In the early twentieth century, urban areas had many more integrated neighborhoods than exist today. Before the widespread use of automobiles, workers had to live in communities close to their workplaces, resulting in mixed neighborhoods, with Irish immigrants, Italian immigrants, Jewish immigrants, native whites, and African-Americans. Then, segregated public housing programs divided the races, in many cases in communities where segregation hadn’t previously existed. That was in the open. It wasn’t that African-Americans happened to apply to some housing projects and whites happened to apply to other housing projects. These were housing projects for middle class families, because we had a big housing shortage in the Depression and during WWII.  Public housing then exacerbated, and sometimes created, segregation. We’ve forgotten that what we now think of as public housing, a place where only poor people and those predominantly from minority groups live, was once for middle class families and anyone with open eyes could see that they were explicitly segregated.

A map of New York City based upon the 2010 census that shows the on-going residential racial divide. The map was created by Eric Fischer. Red dots represent white families, blue dots represent black families, orange dots represent Hispanic families, and green dots represent Asian families. Maps of all the major American cities can be seen on Mr. Fischer’s Flickr page, but a handful are presented throughout this transcript as well.

The frontispiece of my book is a photo of President Franklin D. Roosevelt handing keys to the 100,000th family to receive housing from the New Deal’s housing agency. This particular project was in Pittsburgh and the family is clearly white and middle class, and it is surrounded by neighbors and other residents that are also clearly middle class and white. African-Americans were excluded from that project, prohibited from living there.

The other major federal New Deal agency that segregated the nation was the Federal Housing Administration, which gave subsidies to builders of large subdivisions in places like Levittown in Queens or Lakewood in Los Angeles, and in hundreds and hundreds of suburbs in between.

Levitt, for example, could have never assembled the capital to build 17,000 homes for which he yet had no buyers. He could get bank loans to build that project only after the Federal Housing Administration guaranteed those bank loans. As a condition of those guarantees, the FHA specified that no homes could be sold to African-Americans and that every deed include a clause prohibiting re-sale to African-Americans

This was all quite open. Anybody who bought a home in Levittown knew that there was a deed restriction prohibiting re-sale to African-Americans. So, you’re right. It’s a forgotten history, not a hidden history. This was all completely in the open.

OR: Is it possible to be precise in answering the question of why this history was forgotten? Did it become a matter of convenience to forget, or were there more pernicious forces causing that forgetting?

RR: I think it was very convenient to forget. That’s one way to put it. Residential segregation is a very difficult thing to remedy. It can be remedied, but it’s not as easy to remedy as passing a law prohibiting segregation on buses or prohibiting segregation in restaurants or even schools. If we pass a law abolishing segregation in those areas, it’s conceivable that it could end the next day. But, if we try to abolish segregation in housing it’s not as though the next day families can relocate to an integrated neighborhood. Housing is a much less flexible institution than these other ones, so it’s very difficult to remedy.

The easiest way to avoid thinking about it is to tell yourself that we, our government, didn’t do it at all. But if we understood that this was an unconstitutional governmentally-structured system of residential segregation, we would have to understand that we have a constitutional obligation to remedy it.

OR: One of the very interesting parts of the book is a very good analysis of the fact that people in higher office when these policies were taking shape were individuals we don’t consider to be segregationists – such as Franklin Roosevelt and Harry Truman, who desegregated the armed forces. Would you mind talking a little bit about the influence southern Democrats had during this time and the political realities of why these policies developed?

RR: Actually the federal insistence on residential segregation was not, I think, attributable to southern Democrats. It is true that many policies of the New Deal and Truman’s Fair Deal were attributable to compromises made with the southern Democrats, for example when African-Americans were excluded from Social Security or when the minimum wage was applied only to occupations in which African Americans were not significantly present. Those racial conditions may have been necessary to get southern Democratic votes for Social Security or Fair Labor Standards, because these were national policies.

But, housing policy is not national policy in the same way. The southern Democrats didn’t object to northern states having integrated schools, they only wanted to maintain segregation in schools in their own states. Likewise, when the federal government created suburbs like Levittown or Lakewood, or segregated public housing in places like Cleveland or Chicago or other northern cities, southern Democrats wouldn’t have objected to integration in those projects so long as they had the right to segregate in their own states. So, I don’t think the same reasoning applies to housing as it does to Social Security or the Fair Labor Standards Act. This was not a question of political compromise for southern Democrats. This was a question of the assumption of the ruling elites in this country about the inferiority of African-Americans and the desirability to keep them separate.

Los Angeles.

OR: Have you encountered any cities where there are much more diversity and integration? Or would you say that residential segregation is true across the board?

RR: It’s a question of whether you’re going to look at the big picture or detail. There are certainly some cities that are doing a better job and that have inclusionary zoning ordinances that require new developments to set aside a share of apartments or townhouses for moderate and low-income families. Montgomery County, outside Washington D.C, is perhaps a good example of that.

There are some states that have adopted fair share laws. New Jersey, for example, requires that every jurisdiction move towards incorporating its fair share of low and moderate income families in its community. Massachusetts has a 40B program which attempts to increase diversity.

But, when you’re looking at the big picture, communities in Massachusetts, New Jersey, and Washington, D.C., are all mostly segregated. So, I think there are things that can be done to desegregate, but the big picture is that we have residential segregation everywhere, even in places that are taking relatively better steps to try to address it.

OR: What are the solutions that you lay out short of getting different views on the Supreme Court? What are some things that we can do to remedy such a difficult situation where it’s not as simple as passing a law?

RR: The best thing we can do is reacquaint ourselves with this history because so long as we maintain the myth that this happened by accident, by millions of private decisions and personal actions or preferences, it’s very hard to undo millions of decisions by accident. So, we have to come to understand that we have an unconstitutional system. Once we have a shared understanding of that fact, then we can begin to have productive conversations that are needed to figure out how we can remedy these constitutional violations, because if we understand that this system was created unconstitutionally, we’ll understand that we’re obligated to remedy it.

We could spend a lot of time now discussing the kinds of solutions that would be necessary, but it’s pointless now. If we had a new consensus that eliminated the myth of de facto segregation and substituted for it the accurate notion that we are living with the consequences of de jure segregation by explicit government policy, that would be the first major step we should take.


If we reached that point, we could, for example, prohibit zoning ordinances in suburbs around the country that perpetuate segregation (for example, by requiring only homes on large lot sizes and large numbers of bedrooms) as a way of keeping out low- and moderate-income families. But first, we would have to recognize that these zoning ordinances have an unconstitutional purpose and understand the history of how they were created.

Another set of reforms should concern the two programs that the federal government now operates to subsidize low-income housing. One is popularly known as the ”Section 8” voucher program that you’re probably already familiar with; it subsidizes families’ apartment rents. That program now perpetuates segregation because landlords in most cities and states are permitted to discriminate against voucher recipients by refusing to accept them in middle-class communities; landlords that do accept them are mostly in segregated neighborhoods. Further, voucher amounts are calculated to give too small a subsidy to rent in many middle-class communities. That program could easily be reformed so that Section 8 vouchers were usable in middle-class neighborhoods. But, we’re not going to do that unless, as I say, we understand we have a constitutional obligation to fix this.

The other major federal program for low-income families is the Low-income Housing Tax Credit,  a tax credit for builders of low-income and moderate-income housing. That tax credit also reinforces segregation because landlords prefer to build in already segregated neighborhoods where land is cheaper and there’s no community opposition. That program could easily be reformed so that these tax credits could not be used to reinforce segregation and must be used to develop mixed-income housing in middle-class communities.

There’s no shortage of reform programs that we can implement to desegregate metropolitan areas.

OR: There are a surprising number of people today that proclaim that racism is a thing of history. We have come a long way as far as how laws are written, but I think you demonstrate enormously well, how racism can be transmitted through generations. One of the discussions in the book is of how segregated housing has deeply impacted the wealth gap between white and black families. You already talked a little bit about this when you mentioned Levittown earlier, but I was wondering if you could walk through why segregated housing produced such stark differences in wealth levels between races.

RR: You mentioned Levittown. That’s a good example, although it’s not the only example of hundreds of subsidized developments for whites-only that sprang up with federal support across the country. Houses in those developments in the mid-twentieth century typically sold for anywhere between $7,000 and $10,000, only to white families, and on condition that they could never be re-sold to African-Americans. That amount of money was somewhere around $100,000 in today’s dollars and was about twice the national median income. Working class families could easily afford to buy homes at a price of twice national median income, especially veterans who could buy with no down payment. Monthly mortgage payments for white families who left cities to move to these segregated suburbs were less than those families were paying for apartment rent in cities, even if they were renting apartments in public housing.

Today, those same homes are selling for $300,000 to $400,000, or six to seven times national median income and the white families who purchased the homes have gained, for themselves and their children and grandchildren, several hundred thousand dollars in wealth. Most middle-class families in this country gain wealth from the equity appreciation in their homes.

African-American families who were not permitted to move into those developments gained none of that wealth and mostly lived in rented apartments. Today, on average, African-American income is about 60% of white income. But, African-American wealth is only about 5% of white wealth. That enormous disparity is almost entirely attributable to unconstitutional federal housing policy of the mid-twentieth-century.

In the 1968 Fair Housing Act, Congress finally said, in effect, ‘OK. African-Americans, you can now move to Levittown or Lakewood’, but it was an empty offer because the prices of those homes had appreciated to the point where working- or middle-class African-Americans could no longer afford them—not just African-Americans, but middle-class whites as well. Unless you’re very wealthy, you can’t buy a home for six or seven times national median income. So, the legacy of these unconstitutional racial housing policies practiced by the federal government are very powerful and construct much of the inequality that we see in this country today.

OR: There have been statistical improvements in quality of life in many urban areas over the last couple of decades. But, I think a lot of that is due to gentrification. Have you looked at the process of gentrification and how that’s impacted the issue of housing discrimination?

RR: Gentrification can produce a temporary image of integration because as more affluent families and white families move into neighborhoods that were previously low-income and minority, they can seem to be integrated. But, unless the process is controlled, it’s just a transitional phenomenon because fewer and fewer of the previous residents can remain. They can’t afford to live there because property taxes rise when the land becomes more valuable. They eventually relocate to new segregated communities, frequently in inner-ring (and sometimes more distant) suburbs. So, gentrification can be a positive force only if it’s controlled and provision is made for the preservation of low- and moderate-income housing alongside the newer affluent neighbors.

OR: And the mechanism of displacement is the property taxes?

RR: Yes, property taxes are one of the big causes. The value of your property goes up as more affluent families bid up prices and your taxes go up. That’s a big cause of it.


OR: What about the massive Hispanic migration that we’ve seen recently as well? There’s certainly more overlap between black and Hispanic neighborhoods, particularly in places like Los Angeles. What effect has that had?

RR: I don’t think it compounds the problem, but it doesn’t change the situation either. Low-wage immigrant groups have always settled in neighborhoods of concentration where their language is spoken and where the culture is familiar. That’s not a new phenomenon. It’s the same phenomenon that we saw with Jewish or Italian or other neighborhoods where immigrant groups settled. That’s different from the kind of segregation that African-Americans experienced where they were prohibited by explicit government policy from living elsewhere.

The reality is that while we have neighborhoods of concentrated Hispanic low-wage immigrants that look similar in economic characteristics to African-American neighborhoods, the Hispanic population is assimilating at similar rates to past immigrant groups. By the third generation, Hispanic home ownership rates are pretty similar to those of whites and they’re moving into suburban neighborhoods in a way that African-Americans are not, and are not able to do.

About 40% of third generation and beyond Hispanics marry non-Hispanics. They become part of the majority white population and are not all that distinguishable any longer. Much of the data that we have showing terrible outcomes for Hispanics are distorted, because Hispanics with the best outcomes no longer identify themselves as Hispanic in surveys.


The reality is that the experiences of African-Americans and Hispanics are not comparable. Now, it is certainly true that many of the social problems and economic problems of low-income Hispanics and low-income African-Americans are similar and we should adopt policies to address them. So reforms, for example, in the Section 8 housing and Low-Income Housing Tax Credit programs I mentioned would benefit both groups. But, the concentration of low-wage immigrants is not the same kind of constitutional violation that has caused concentrations of African-Americans.

OR: Another issue brought to the surface in the book are our contemporary issues with urban policing and what, in the modern sense, might have started in Ferguson in reaction to that. Of course, a prime cause of this is residential segregation. I was curious if groups that are attacking this problem such as Black Lives Matter or other advocacy groups have contacted you or in any way directly reacted to your book.

RR: The important audiences for my book have to be not only people that are living in low-income neighborhoods, because this is a problem that was created by the country as a whole. It needs to be resolved by the country as a whole. Black Lives Matter cannot on its own resolve this on its own. It’s got to be done by developing a new consensus among the population as a whole that influences policy makers to redress a serious constitutional violation.

OR: People who would object to what you say, may argue that you’re advocating that government solve a solution that it itself created. How do you respond to those sorts of criticism? Is it possible that markets could solve these problems?

RR: They’re correct that the problem has been created by the government. But government has to solve the problem. There’s no reason to believe that market solutions would resolve this in any way. As I mentioned before, the suburbs that were created that would have been affordable to African-Americans fifty or sixty years ago, and when many African-Americans would have wanted to live there, are now unaffordable because of market forces. Uncontrolled market forces are creating more and more inequality in all areas of life, not just between races. There is no reason to think that market forces would diminish inequality if left without regulation.

OR: In the current political climate, with the contentious election we just had and in which race played a major role, do you feel like we are moving further away or in the right direction of finally addressing these lingering problems of our history? Do you have hope that coalitions will develop and that research can further bring this issue to light?

RR: I’m actually quite hopeful. Just a few years ago, few Americans were talking about racial inequality in this country. The de facto segregation belief had been supplemented with the concept of a “post-racial society” and that we should adopt color-blind policies. We no longer talk like that. So, I have great hope for the potential of this kind of discussion continuing to take place.

The movement throughout the South to confront cultural monuments of slavery is one indication of the fact that we’re having conversations now that we would not have had five or ten years ago.

I think my book The Color of Law has come out at a fortuitous time when people are open to rethinking how we got to this place. Had the book come out ten years ago, many fewer people would have paid attention to it.

OR: But, it does remain true that opinions, for instance, on the Court have not varied. Justice Roberts, who you mention, not only used the term “de-facto segregation” but he’s famous for the line, “The only way to eliminate discrimination on the basis of race is to stop discriminating on the basis of race,” which I think referenced affirmative action. Not to mention the Court’s treatment of The Voting Rights Act. They certainly have not come around and seem to be moving in the opposite direction.

RR: One would not expect the Court to lead public opinion and particularly informed opinion. Once we develop a new consensus in this country about the unconstitutional nature of our racial landscape, the Court will shift. I don’t expect the Court to be a leader in this. It never has led and never will.

OR: Well, thank you very much. I enjoyed the conversation and I obviously hope that you’re correct about the direction we’re moving and that we can look back at the publication of your book as an important moment for the country.

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